State v. Charbonneau, 2011 VT 57
For Plato the idea of truth was an absolute that we, as mere shadows, could only approximate and mimic in varying degrees. Nowhere is this truer than in court when multiple witnesses testify to the same event. For even the simplest of questions (“Where was the car parked?”), you will in any ordinary trial get a variety of answers (“in the driveway”; “on the street”; “there was no car”). It is not that witnesses are lying, covering up, or even misremembering, but it is just the reality that each of us perceives and catalogues events in different ways. Our memories are subject to all sorts of accidental and purposeful manipulations.
In order to get closest to objective truth, the court system operates under the following principles: (1) take testimony as soon as possible after the event, (2) make sure the witness is credible (remembers a number of details accurately) and (3) establish that the witness is unbiased. The further out from the incident the testimony is, the less reliable it becomes, and the more likely biases and memory lapses will come into play. Thus, our court system favors live testimony and strongly disfavors newly discovered testimony that is brought to the court during the appeals process after the initial trial.
Today’s case illustrates the issues that come into play with late entry testimony and how the court’s strict standard for admitting such testimony is likely to deny the chance that such evidence will ever go before a jury on the merits.
Here are the basic facts as told by the complaining witness. In 2007, Defendant’s wife was arrested and processed for DUI. Wife was afraid to go home, so the arresting trooper released her to a friend, who came and picked up the wife and took her to his house. Defendant found out, went to the friend’s house, and started to scream at the friend and wife. He followed this up with a few phone calls to the friend, wherein he continued to reiterate his grievances in a loud and bellicose tone.
The next day, friend drove wife to Defendant’s house to help her pick up some clothes. In a move worthy of R. Crumb, Defendant jumped on his wife’s back exclaiming “You’re going to get yours.” The friend got out of his truck and tried to calm Defendant down. Defendant would give no quarter and attacked the friend who used what he later described as a “fishing stick” to pry off his putative attacker. Friend and Defendant’s wife both called 911 and reported that Defendant was attacking and threatening them. Police arrived, and Defendant was arrested and charged with domestic assault against his wife and simple assault against the friend.
At trial, the State called the friend, the wife, and a neighbor to testify about the events. The friend testified to the facts as recited above, and the neighbor more or less verified these facts. The wife reversed her statements, now testifying that the friend had threatened and attacked the Defendant and that Defendant had never threatened or assaulted her. Defendant testified that his acts were in self-defense and were only in response to the friend’s aggression.
The jury did not buy the wife’s change in testimony or the Defendant’s story of innocence and found Defendant guilty of both charges. The trial court acquitted Defendant on the domestic assault verdict for insufficiency of evidence but sentenced him eleven to twelve months on the simple assault.
This clearly rankled Defendant and his own sense of truth as he appealed his decision thereafter on grounds that the State’s expert witness misstated his credentials. State v. Charbonneau, 2009 VT 86 (mem.). He lost and served out his term.
Now, two years later, Defendant has come back with new evidence in the form of a newly discovered witness to the crime, the friend’s son James. According to his sworn affidavit, James was in Defendant’s house at the time of the incident—unbeknownst to everyone. Peeking from an upstairs window, James witnessed his father assault the Defendant and the Defendant’s self-defense. James claimed that he then left before anyone could discover his pugilistic voyeurism. He also claimed that he never came forward or told Defendant about it because at the time James depended on his father for contact with his son, and such testimony might enrage his father who would prevent any further contact.
The trial court and the SCOV are somewhat leery about this magic witness who has suddenly come forth after so much time to testify about the critical points in the State’s case. As it turns out, on top of the delay before testimony, there are even more reasons for the trial court to be doubtful. At a hearing, James was only able to recall a broad outline of the incident. He was unable to identify what time of day it occurred, describe what the weather was like, or recall any other details about the incident. The only fact he was positive about, where his father parked the truck, flatly contradicted the testimony of all of the other witnesses.
To make matters worse, James testified that he had never told Defendant anything about witnessing the incident, but a moment later admitted that he had told Defendant everything in October 2009. Given more rope, James apparently chose not to explain this discrepancy.
Finally, James admitted that he and his father had had a recent falling out over a piece of property that his father refused to sell him. A decision that James swore that he would “get even with” and that his father would “pay for.”
Defendant’s burden to overturn a conviction and earn a new trial based on newly discovered evidence is high. The evidence must probably (not possibly) change the result if a new trial is granted. It must have been discovered after the trial. It cannot be evidence that Defendant could have discovered before the trial with due diligence. It must be material to the issue of the case. And it cannot simply be something that makes one of the facts from the previous trial more or less likely.
Those are five substantially difficult criteria. Here Defendant did not get past the first. The trial court found that James’ testimony would not probably change the result. It was simply too flawed, biased, vague, and unreliable.
Defendant’s argument on appeal is that this determination is really an issue for the jury. It is their duty to find a fact credible or not credible, and the trial court usurped the jury’s role in making this determination. Not so says the SCOV. The determination for a new trial rests in the trial court judge’s hands, and she is charged with determining whether the new evidence raises a probability of a different outcome. Such a finding is not binding on a later jury, but it is a threshold determination that Defendant needed to pass to even get to the point of a new trial. Since James’ testimony was unlikely to render a different outcome in the trial court judge’s view, the process never goes further. Given the ample ground for Defendant’s conviction in the first place and the multiple flaws surrounding James’ statements, the trial court made the right call, and the decision is affirmed.
Sorry, but no dice, woodcutter.